Copyrighting the intangible in computers

Boston
— The distinction is between ideas and property. It's a distinction grown blurry as it marks the uncertain territory where one of the nation's most promising new industries does business, computer software.

Software -- languages and programs -- is the bottleneck of the entire computer industry, as rapid hardware development pushes the pace.

But it needs money to develop. And to attract money, the ideas that make up software need to translate into property.

Writing computer programs is creative work. Firms that sell programs -- software houses -- are often compared to book publishers. And as of last month, computer programs, like books, are protected by copyright law -- almost.

To many software houses, copyrights for computer programs are most notable for what they don't protect -- the ideas.

"We are desperately looking for some kind of protection in between the patent and copyright areas," says Gene Kelly, vice-president at Management Science America (MSA) in Atlanta.

MSA is one of the largest software houses in the country. Its problem, as with other firms that sell prepackaged, standard software ("canned" programs), is that the copyright only protects the text, the exact series of steps, in the program.

Anyone who reads it can take the key ideas and rewrite them in his own words, so to speak. And, unlike poetry, the value of the packaged program is in the idea content, not the phrasing.

According to lawyers working in the field, it's unlikely that ideas will ever get legal protection. Copyright law was not designed to be stretched that far, from the written word into the abstract. Rather, software sellers will continue to protect ideas as best they can like good recipes: by keeping trade secrets.

But this leaves considerable gray wash over an area where fine lines should be. "It's an undefined area," MSA's Mr. Kelly says, "so it's always a question, even in the minds of clients."

How much data and program information, for example, can one MSA client trade with another without giving away valuable MSA property (ideas) to a client who hasn't bought them?

It's not a penny-ante question. Computer software already costs twice as much as the hardware itself for a large system. It's valuable property.

So far, the business relies largely on mutual integrity. The stealing of programs or ideas hasn't been a problem for his firm, Kelly says. But, as Tom Huppuch, a counsel for Software International Inc. in Andover, Mass., puts it, "business needs certainty."

But certainty may not come easily. "In the final analysis," Mr. Huppuch notes, "software is logic." And logic can't be copyrighted.

Copyrights are most important to small- scale copying of programs, according to Warren N. Sargent Jr. of Input Inc., a market research firm in Palo Alto, Calif.

Someone with a home computer who buys a program, for example, could lend it to someone who, if dishonest, could copy the program for his own use. An analogy would be borrowing an expensive book and xeroxing it for oneself.